27 comments:

Thank God! And Jesus too! And the Holy Spirit! I was just about to head down to the Costco in Mission Valley and stock up on major supplies. If this fag wedding thing had resumed, you know it would have been the end of the world. I was especially worried about the shit-chute fuckers... they're like a horde of invading zombies with 12" erections in pink ladies underwear.

Let's see: Judge Walker discerned a constitutional right to same-sex marriage. But we know from Boerne that only the Supreme Court can determine the scope of our rights under the Constitution. Ergo, any same-sex marriages entered into between now and when the USSC decides will be tentative at best.

You write: "The question whether the Prop 8 proponents have standing to appeal is a threshold question that is still unresolved." The judge allowed outside groups to be part of the defense during the trial. It wasn't only the state defending Prop. 8. The outside groups should be allowed to appeal in a judgment against them.

You can't have one U.S. Constitution in California, and another U.S. Constitution for the rest of the country.

Moreover, I don't see how the government can lawfully frustrate the will of the people by simply refusing to defend the law. Slap the Governator with a writ of mandamus upside the head to compel him to sign a notice of appeal, and appoint counsel if necessary, but the government cannot tyranically refuse to defend.

And if the named defendants were on the same side as the plaintiffs all along, then there was no "case or controversy," and the suit should be dismissed ab initio.

a stay pending appeal reaquires a finding that they are likely to win.

Yes, its possible for conflicting results, but they do not occur very often. I mean its pretty much the same standard as for a preliminary injunction. a long time ago i won a preliminary injunction against the LSAC (the people who run the LSAT) to obtain accommodations on the LSAT. After I won the prelim, the LSAC folded. They saw the writing on the wall.

Well, the opponents can't show a harm to them. That's the argument. But, as I have argued all along, this is a ridiculous overreach by the federal court. That said, the state of California should have already thought through what with its nutty proposition process and lawsuits.

Also, is it really true that the state is not appealing? That is unbelievable to me. That is just an epic failure of basic duty. There has to be more to it...

My hunch is that now Chief Judge Alex Kozinski's hand is in this somewhere, but maybe not. My long-winded comments regarding this ruling -- and in particular, regarding the composition of the panel, which was not what I and many other legal pundits had been predicting -- are here.

If Jerry Brown does not defend the California Constitution - which was amended by Prop 8 - he is puting his personal/religious opinions above his duty and oath.

Regardless of their feelings on this issue - and I would feel the same if it was the other way - Schwarzenegger and Brown have a duty to defend what the voters wrote into the California Constitution, all the way to a decision.

This is dereliction of duty and impeachment proceedings should begin immediately - which with a spineless and derelict California Legislature is not going to happen.

Therefore, a recall campaign - which only needs to begin while both men are still in office and can continue after they have left office resulting in removal of pensions and the stain forever on their records in the Official History of California - must begin now.

No, you can't have one U.S. Constitution in California and a different one for the rest of the country.

But you can have a law in one state that burdens equal protection interests without passing the "rational basis" test and a law in another state imposing the same burdens, yet passing the rational basis test.

Ann, as a non-lawyer I have trouble following this "standing" issue. Are you seriously telling me that the people of California have no way to defend their decision? The governor of California can cancel any referendum by refusing to defend it? Doesn't that defeat the whole idea of a referendum?

MikeR, I concur. It turns the idea of representational democracy on its head. But lawyers, judges and politicians like this since it prevents the rabble from actually doing anything.

(I'm not a big fan of referendums anyway. If you want something changed, change the politicians. Constantly tinkering with their constitution through referendum has greatly contributed to California's budget woes.)

Althouse has made it clear that she thinks the initiative process is unconstitutional, but the feds have left it alone so far.

It also seems to me that the oath of office for the Gov. and Atty General requires them to defend the CA constitution and 8 is part of that constitution now. If they fail to appeal then it is a derelection of their sworn duties.

"Althouse has made it clear that she thinks the initiative process is unconstitutional, but the feds have left it alone so far."

The Supreme Court has consistently said that the question whether something violates the Guaranty Clause is nonjusticiable. It's covered by the "political question doctrine," which means the courts will not address the question at all. It was decided in the early 20th century that the challenge to the initiative and referendum was not something courts could handle. I disagree, but it's not going to happen.